Form: S-8

Initial registration statement for securities to be offered to employees pursuant to employee benefit plans

June 17, 2004

Table of Contents

As filed with the Securities and Exchange Commission on June 17, 2004

Registration No. 333-            

 


UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 


 

COMMONWEALTH BIOTECHNOLOGIES, INC.

(Exact name of issuer as specified in its charter)

 

Virginia   56-1641133
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer
Identification No.)

 

601 Biotech Drive

Richmond, Virginia 23235

(Address of Principal Executive Offices)

(ZIP Code)

 

COMMONWEALTH BIOTECHNOLOGIES, INC. 2002 STOCK INCENTIVE PLAN, AS AMENDED

(Full title of the plan)

 

With copies to:

 

Robert B. Harris,

President and Chief Executive Officer

Commonwealth Biotechnologies, Inc.

601 Biotech Drive

Richmond, Virginia 23235

(Name and address of agent for service)

(804)648-3820

 

Bradley A. Haneberg, Esq.

Kaufman & Canoles, P.C.

Three James Center

Suite 1206

1200 East Cary Street

Richmond, Virginia 23219

(804) 771-5790

(Telephone number, including area code, of agent for service)    

 


Title of Each Class of

Securities To
Be Registered

   Amount To Be
Registered (1)
   Proposed Maximum
Offering Price
Per Share (2)
   Proposed Maximum
Aggregate
Offering Price (2)
   Amount of
Registration Fee

Common Stock, without par value per share

   300,000    $6.725    $2,017,500    $256

 

(1) This Registration Statement relates to the registration of additional securities under the Commonwealth Biotechnologies, Inc. 2002 Stock Incentive Plan, as amended. Under the original registration statement (Registration No. 333-102368) relating to the plan, the Registrant registered 300,000 shares of common stock, for which the registration fee was previously paid in full.

 

(2) Estimated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as amended, solely for the purposes of calculating the amount of the registration fee, based upon the average of the high and low sales prices per share of common stock, on June 10, 2004, as reported on the Nasdaq SmallCap Market.


Table of Contents

Reoffer Prospectus

 

600,000 SHARES

 

COMMONWEALTH BIOTECHNOLOGIES, INC.

 

COMMON STOCK

 

This prospectus relates to the reoffer and resale by certain selling shareholders of shares of our common stock that were issued or may be issued by us to the selling shareholders upon the exercise of stock options granted under the Commonwealth Biotechnologies, Inc. 2002 Stock Incentive plan. The shares are being reoffered and resold for the account of the selling shareholders and we will not receive any of the proceeds from the resale of the shares.

 

The selling shareholders may be effected from time to time in one or more transactions on the Nasdaq SmallCap Market, in negotiated transactions or otherwise, at market prices prevailing at the time of the sale or at prices otherwise negotiated. See “Plan of Distribution.” We will bear all expenses in connection with the preparation of this prospectus.

 

Our common stock is traded on the Nasdaq SmallCap Market under the symbol “CBTE.” On June 15, 2004, the closing price for our common Stock, as reported on the Nasdaq SmallCap Market was $6.84 per share.

 

Our principal executive offices are located at 601 Biotech Drive, Richmond, Virginia 23235, and our telephone number there is (804) 648-3820.

 


 

This investment involves risk. See “Risk Factors” beginning at page 3.

 


 

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE

SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE

SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF

THIS PROSPECTUS. ANY REPRESENTATION TO THE

CONTRARY IS A CRIMINAL OFFENSE.

 

The date of this Reoffer Prospectus is June 17, 2004


Table of Contents

TABLE OF CONTENTS

 

     Page

FORWARD-LOOKING STATEMENTS

   2

THE COMPANY

   3

RISK FACTORS

   3

USE OF PROCEEDS

   8

SELLING SHAREHOLDERS

   8

PLAN OF DISTRIBUTION

   9

EXPERTS

   10

LEGAL MATTERS

   10

WHERE YOU CAN FIND MORE INFORMATION

   10

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

   10

INDEMNIFICATION

   11

EXPLANATORY NOTE

   11

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

   12

 

FORWARD-LOOKING STATEMENTS

 

Our disclosure in this reoffer prospectus contains “forward-looking statements.” Forward-looking statements are our current expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historic or current facts. They use words such as “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” and other similar terms. These include statements, among others, relating to our planned future actions, our beliefs with respect to the sufficiency of cash and cash equivalents, plans with respect to funding operations, projected expense levels and the outcome of contingencies, such as future financial results.

 

Any or all of our forward-looking statements in this report may turn out to be wrong. They can be affected by inaccurate assumptions we may make or by known or unknown risks and uncertainties. Consequently, we cannot guaranty any forward-looking statement. Actual results may vary materially. The uncertainties that may cause differences include, but are not limited to, general economic and market conditions, the state of the federal, state and local regulatory environment, lack of demand for our services, the ability of our customers to perform services “in-house” and potential cost containment by our customers resulting in fewer research and development projects.

 

We will not update forward-looking statements, whether as a result of new information, future events or otherwise, unless required by law. You are advised to consult any further disclosures we make in our reports to the Securities and Exchange Commission including our 10-KSB, 10-QSB and 8-K reports. Our filings list various important factors that could cause actual results to differ materially from expected results. We note these factors for investors as permitted by the Private Securities Litigation Reform Act of 1995. You should understand that it is not possible to predict or identify all such factors. Consequently, you should not consider any such list to be a complete set of all potential risks or uncertainties.

 

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THE COMPANY

 

Commonwealth Biotechnologies, Inc. (“CBI”) provides sophisticated research and development support services on a contract basis to the biotechnology industry. Our customers consist of private companies, academic institutions and government agencies, all of which use biological processes to develop products for health care, agricultural and other purposes. We derive revenues principally from providing macromolecular synthetic and analytical services to researchers in the biotechnology industry or to researchers who are engaged in life sciences research in government or academic labs throughout the world.

 

CBI provides these services to customers on a contract basis and derives revenues from these services, not solely from sales of commercial products resulting from the research. This arrangement distinguishes CBI from many other biotechnology companies. Our revenues are not derived from successful commercialization of a new biotechnology product. We believe that we have developed a strong reputation as a leading provider of biotechnology research and development analytical services. We are focusing our expansion efforts on the maintenance and expansion of long-term relationships with customers in the biotechnology industry and in establishing new customer relationships. CBI has implemented new technologies to provide new services to its customers, and is continuing to develop new products and services to meet the changing needs of its customers.

 

Our executive offices are located at 601 Biotech Drive, Richmond, Virginia 23235, and our telephone number is (804) 648-3820.

 

RISK FACTORS

 

You should be aware that there are various risks to an investment in our common stock, including those described below. You should carefully consider these risk factors, together with all of the other information included in this prospectus, before you decide to invest in shares of our common stock.

 

If any of the following risks, or other risks not presently known to us or that we currently believe to not be significant, develop into actual events, then our business, financial condition, results of operations or prospects could be materially adversely affected. If that happens, the market price of our common stock could decline, and you may lose all or part of your investment.

 

This prospectus contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed in this prospectus. Factors that could cause or contribute to these differences include, but are not limited to, those discussed below and elsewhere in this prospectus, and in any documents incorporated in this prospectus by reference.

 

Risks Related to our Business and Industry

 

We have incurred losses and anticipate future losses.

 

We have incurred significant losses since our inception in 1997, including net losses of $2,091,194 in 1999, $921,916 in 2000, $1,673,031 in 2001, $625,726 in 2002 and $80,601 in 2003. As of December 31, 2003, we had an accumulated deficit of $8,944,513 and shareholders equity of $3,371,293. While we expect to eliminate losses from operations in the upcoming fiscal quarters, we cannot assure that we will ever operate profitably on a consistent basis.

 

We may need to raise additional capital to reach our goals.

 

If we are not able to generate sufficient cash for ongoing operations, we will need to raise additional funds through public or private sale of our equity or debt securities or from other sources to build our core business and to maintain compliance with Nasdaq listing requirements.

 

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We cannot assure you that additional funds will be available if and when we need them, or that if funds are available, they will be on terms favorable to us and our shareholders.

 

If we are unable to obtain sufficient funds or if adequate funds are not available on terms acceptable to us, we may be unable to meet our business objectives. A lack of sufficient funds could also prevent us from taking advantage of important opportunities or being able to respond to competitive conditions. Any of these results could have a material adverse effect on our business, financial condition and results of operations.

 

Our need to raise additional funds could also directly and adversely affect your investment in our common stock in another way.

 

When a company raises funds by issuing shares of stock, the percentage ownership of the existing shareholders of that company is reduced or diluted. If we raise funds in the future by issuing additional shares of common stock or securities convertible or exchangeable into shares of common stock, you may experience significant dilution in the value of your shares.

 

We might not be able to use net operating loss carryforwards.

 

As of December 31, 2003, we had net operating loss carryforwards for federal income tax purposes of approximately $9,176,000, which will expire at various dates through 2021. Our ability to use these net operating loss and credit carryforwards to offset future tax obligations, if any, may be limited by changes in our ownership. Any limitation on the use of net operating loss carryforwards, to the extent it increases the amount of federal income tax that we must actually pay, may have an adverse impact on our financial condition.

 

We expect that our quarterly results of operations will continue to fluctuate, and this fluctuation could cause our stock price to decline, causing investor losses.

 

We make money by providing analytical services to the pharmaceutical, biotechnology and related industries. Our revenues continue to change because of changes in the status of contracts with several large customers, including the federal government. In addition, many of our other customer projects are individual orders for specific projects. Obtaining additional work is highly dependent upon customer satisfaction with our services and upon other things beyond our control, such as the timing of product development and commercialization programs of our customers. As we cannot predict for more than a few months in advance the number and size of future projects, the timing of significant projects could have a major influence on financial results in any given period. The combined impact of several large contracts and the unpredictable project fluctuations from other customers can result in very large changes in financial performance from quarter to quarter or year to year.

 

The loss of key personnel or the inability to attract and retain additional personnel could impair our ability to develop our operations.

 

We are highly dependent on our senior management and scientific staff, and the loss of their services would adversely affect our business. In addition, we must hire and keep a number of additional highly qualified and experienced management and scientific personnel, consultants and advisors. It is important that we hire and keep qualified personnel. Competition is high for qualified individuals, and we face competition from many other pharmaceutical and biotechnology companies, universities and other research institutions. We may not be able to attract and keep such individuals on acceptable terms or at all, and not being able to do so would have a negative affect on us.

 

We employ only a limited number of marketing and sales personnel.

 

We employ one full-time marketing professional and no sales personnel. We will have to hire our own sales force or use an outside sales force. There is no guarantee that we will be able to do so or that it will be cost

 

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effective. By using outside sales persons, we may lose control over important factors, including market identification, marketing methods, pricing, and promotional activities. We could lose control over the make-up of the sales force and the amount of time they spend selling. We may be unable to stop this outside sales force from pursuing other services which compete with our business.

 

Our industry is extremely competitive.

 

There is intense competition in our industry. Many of our competitors and potential competitors have substantially larger laboratory facilities, marketing capabilities and staff than we do. In order to be able to compete, we will need to provide to our customers new analytical technologies as they become available in our rapidly changing, technology driven business. A large amount of money may be required to obtain these technologies.

 

Our success is dependent upon retaining customers in a highly competitive market.

 

Our future success will depend, in part, upon our ability to keep key customers. In 2003, approximately 25% of our revenues were attributable to one customer. A loss of this customer would have a material, adverse effect upon us.

 

We use hazardous chemicals and radioactive and biological materials in our business.

 

Any claims relating to improper handling, storage or disposal of these materials could be time consuming and costly. Our business operations involve the controlled use of hazardous materials, chemicals, recombinant biological molecules, biohazards (infectious agents) and various radioactive compounds. Although we believe that our safety procedures for using and disposing of such materials meets the standards set by state and federal regulations, the risk of accidental contamination or injury from these materials cannot be completely eliminated. If such an accident occurs, we could be held responsible for any damages that result and any such liability could exceed our financial resources.

 

If we are unable to adequately protect our proprietary technologies, third parties may be able to use these technologies, which could adversely affect our ability to compete in the market.

 

We are conducting research into a potential technology that may result in new pharmaceutical products. This technology is in early stages of development. It is highly speculative due to the substantial risks and considerable uncertainties associated with its development, which include but are not limited to the following:

 

  • The development of our technology may not yield products which work or are better than other products. As a result, these products my have little commercial value. Other companies that have substantially greater research, development and marketing resources may develop competing products that would prevent our products from selling in the marketplace.

 

  • We must secure and defend patent and other intellectual property rights to the technologies, and avoid infringing the intellectual property rights of third parties. The patent positions of biotechnology companies are uncertain and involve difficult legal and factual questions. We cannot guarantee that we will develop intellectual property rights that are protectable or that the protection afforded will be enough to protect the commercial value of our technologies. In addition, our patent rights may be challenged, invalidated, infringed or circumvented.

 

  •

Commercialization of any products resulting from our research generally will require government approvals and be subject to extensive government regulation. In the case of human pharmaceutical products, the approval of the United States Food and Drug Administration requires extensive pre-clinical and clinical trials involving considerable costs and uncertainties.

 

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If we do not receive government approvals, we would be unable to commercialize products based on our research and development programs.

 

  • Because we do not have and likely will not have the resources we need to develop products beyond the initial research stage, we may have to license marketable technologies resulting from our research to third parties for development into commercial products. As a result, we may surrender control over the development and marketing processes and will have to rely on the efforts and resources of third parties.

 

Risks Related to the Offering of Securities Pursuant to this Prospectus

 

We have experienced dramatic shifts in the trading volume of our common stock and you may not be able to sell the securities at all or when you want to do so.

 

Our common stock is currently quoted on the Nasdaq SmallCap Market. The trading volume of our common stock has shifted dramatically over short time periods during the last few years. Over the past three years, the daily trading volume for our common stock was as low as no shares per day and as high as 13,129,300 per day, as reported by Nasdaq. Because of the shifting trading volume, you may be unable to sell our common stock when you want to do so if the trading market for our common stock is limited at the time of your proposed sale.

 

Our stock price might be volatile and you might not be able to resell your securities at or above the price you have paid.

 

If you purchase our common stock, you might not be able to resell the shares at or above the price you have paid. The market price of our common stock might fluctuate significantly in response to many factors, some of which are beyond our control, including the following:

 

  • actual or anticipated fluctuations in our annual or quarterly results of operations;

 

  • variations in our operating results, which could cause us to fail to meet investors’ expectations;

 

  • announcements by our competitors of significant contracts, strategic partnerships, joint ventures or capital commitments;

 

  • conditions and trends in the biotechnology industry;

 

  • general market, economic, industry and political conditions;

 

  • additions or departures of key personnel;

 

  • stock market price and volume fluctuations attributable to inconsistent trading levels; and

 

  • future sales of equity or debt securities, including sales that dilute existing investors.

 

In addition, the stock market has experienced extreme volatility that often has been unrelated to the performance of its listed companies. Moreover, on occasion, only a limited number of our shares are traded each day, which could increase the volatility of the price of our stock. These market fluctuations might cause our stock price to fall regardless of our performance. In the past, companies that have experienced volatility in the market price of their stock have been the objects of securities class action litigation. If we were involved in securities class action litigation, it could result in substantial costs and a diversion of our attention and have a material adverse effect on our business.

 

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We are not providing any legal or tax advice with respect to the tax consequences regarding the securities.

 

An investment in the securities may involve certain material federal and state tax consequences. Prospective investors should not rely on this prospectus or any of the exhibits to this prospectus for legal, tax or business advice. Prospective investors should consult with their respective legal counsel, accountant or business adviser as to legal, tax and related matters concerning investment in the securities offered in this prospectus.

 

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We do not presently anticipate paying cash dividends on our common stock.

 

We intend to retain all earnings for the foreseeable future for funding our business operations.

 

USE OF PROCEEDS

 

CBI will not receive any proceeds from the sale of the Common Stock by the selling stockholder to others. All sales proceeds will be received by the selling stockholder.

 

SELLING SHAREHOLDERS

 

The shares of Common Stock to which this reoffer prospectus relates are being registered for reoffers and resales by the selling stockholder, who acquired the Common Stock pursuant to an option agreement with CBI.

 

The table below sets forth with respect to the selling shareholders, based upon information available to CBI as of June 17, 2004, the number of shares of CBI’s common stock owned (including, where applicable, the Common Stock covered by this reoffer prospectus, CBI common stock not covered by this reoffer prospectus and options to purchase CBI common stock), the number of shares of Common Stock registered by this reoffer prospectus and the number and percent of outstanding shares of common stock that will be owned after the sale of the registered Common Stock assuming the sale of all of the registered Common Stock.

 

Selling Stockholder


  

Number of Shares
of Common

Stock

Owned Before

Sale (1)


   

Number of

Shares of

Common Stock

Registered by

This Reoffer

Prospectus (2)


  

Number of

Shares of

Common

Stock Owned

After Sale


  

Percentage of

Shares of

Common

Stock

Owned After

Sale (1)


Richard J. Freer, Ph.D. (3)

   221,590 (9)   50,174    171,416    5.1

Robert B. Harris, Ph.D. (4)

   160,581 (10)   34,945    125,636    3.8

Thomas R. Reynolds (5)

   90,601 (11)   31,707    58,894    1.8

James H. Brennan (6)

   72,146 (12)   15,316    56,830    1.7

Samuel P. Sears, Jr. (7)

   166,476 (13)   11,029    155,447    4.8

Donald A. McAfee, Ph.D. (7)

   29,267 (14)   14,267    15,000    *

Raymond A. Cypess (8)

   5,515 (15)   5,515    0    *

James D. Causey (7)

   10,000 (16)   15,000    0    *

Peter C. Einselen (7)

   29,189 (17)   15,000    24,189    *

* Less than 1%.

 

(1) Based on 3,201,556 shares of Common Stock outstanding as of June 17, 2004. Shares of Common Stock that a selling stockholder has a right to acquire within 60 days after June 17, 2004 pursuant to the exercise of options, warrants or other rights, including options granted under the Incentive Plan, are deemed to be outstanding for the purpose of computing the number and percentage of shares of Common Stock beneficially owned by such selling stockholder, but are not deemed to be outstanding for computing the percentage of ownership of any other selling stockholder.

 

(footnotes continued on next page)

 

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(footnotes continued from previous page)

 

(2) Represents the maximum number of shares issued under the Incentive Plan that could be sold under this prospectus if the holder exercised all of his options when vested and sold the underlying shares. Does not constitute a commitment to sell any or all of the stated number of shares. The number of shares to be sold shall be determined from time to time by each selling stockholder in his discretion. Includes shares of Common Stock underlying vested and unvested options.

 

(3) Chairman, Chief Operating Officer and a director of CBI.

 

(4) President, Chief Executive Officer and a director of CBI.

 

(5) Executive Vice President for Science and Technology, Secretary and a director of CBI.

 

(6) Controller of CBI.

 

(7) A director of CBI.

 

(8) A former director of CBI.

 

(9) Represents 57,666 shares of Common Stock, 132,755 shares of Common Stock underlying options and 31,169 shares of Common Stock underlying warrants that are exercisable within 60 days after June 17, 2004.

 

(10) Represents 51,121 shares of Common Stock, 80,513 shares of Common Stock underlying options and 28,947 shares of Common Stock underlying warrants that are exercisable within 60 days after June 17, 2004.

 

(11) Represents 30,834 shares of Common Stock, 46,609 shares of Common Stock underlying options and 13,158 shares of Common Stock underlying warrants that are exercisable within 60 days after June 17, 2004.

 

(12) Represents 10,066 shares of Common Stock and 62,080 shares of Common Stock underlying options that are exercisable within 60 days after June 17, 2004. Of such shares, 550 are held by Mr. Brennan’s son, and Mr. Brennan disclaims ownership thereof.

 

(13) Represents 140,447 shares of Common Stock and 26,029 shares of Common Stock underlying options that are exercisable within 60 days after June 17, 2004.

 

(14) Represents 3,238 shares of Common Stock and 26,029 shares of Common Stock underlying options that are exercisable within 60 days after June 17, 2004.

 

(15) Represents 5,515 shares of Common Stock underlying options.

 

(16) Represents 10,000 shares of Common Stock underlying options that are exercisable within 60 days after June 17, 2004. Mr. Causey also holds 5,000 additional shares of Common Stock underlying options that are expected to vest over the next two years.

 

(17) Represents 21,411 shares of Common Stock and 7,778 shares Common Stock underlying options or warrants that are exercisable within 60 days after June 17, 2004. Mr. Einselen also holds 10,000 additional shares of Common Stock underlying options that are expected to vest over the next two years.

 

PLAN OF DISTRIBUTION

 

The shares may be offered by the selling shareholders from time to time in transactions on the Nasdaq SmallCap Market, any other stock exchange, market or trading facility on which CBI Common Stock is traded, in the over-the-counter market, in negotiated transactions, through the writing of options on the shares or a combination of these methods of sale, at prices related to prevailing market prices or at negotiated prices. The selling shareholders may effect these transactions by selling the shares to or through broker-dealers and these broker-dealers may receive compensation in the form of discounts, concessions or commissions from the selling shareholders and/or the purchaser of the shares for which such broker-dealers may act as agent or to whom they sell as principal, or both. This compensation as to a particular broker-dealer might be in excess of customary commissions.

 

There is no assurance that any of the selling shareholders will sell any or all of the shares of common stock offered under this prospectus.

 

We have agreed to pay all expenses incurred in connection with the registration of the shares of our common stock offered under this prospectus, except that the selling shareholders shall be responsible for all

 

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underwriting discounts and selling commissions, fees and expenses of counsel and other advisors to the selling shareholders, transfer taxes and related charges in connection with the offer and sale of these shares.

 

EXPERTS

 

The financial statements incorporated by reference in this Prospectus have been audited by BDO Seidman, LLP, independent registered public accounting firm, to the extent and for the periods set forth in their report incorporated herein by reference, and are incorporated herein in reliance upon such report given upon the authority of said firm as experts in auditing and accounting.

 

LEGAL MATTERS

 

Certain legal matters with respect to the validity of the shares of Common Stock offered hereby have been passed upon by Kaufman & Canoles, P.C., Richmond, Virginia, counsel to CBI.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We file annual and quarterly reports, proxy statements and other information required by the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with the Securities and Exchange Commission (the “SEC”). You may read and copy any document which CBI files at the SEC’s public reference rooms located at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. CBI’s SEC filings are also available to the public from the SEC’s web site at http://www.sec.gov. Additional information about CBI may also be obtained at CBI’s web site at http://www.cbi-biotech.com. CBI has filed with the SEC a registration statement on Form S-8 (the “Registration Statement”) under the Securities Act with respect to the Common Stock. This reoffer prospectus, which constitutes a part of that Registration Statement, does not contain all the information contained in that Registration Statement and its exhibits. For further information with respect to CBI and the Common Stock, you should consult the Registration Statement and its exhibits. Statements contained in this reoffer prospectus concerning the provisions of any documents are necessarily summaries of those documents, and each statement is qualified in its entirety by reference to the copy of the document filed with the SEC. The Registration Statement and any of its amendments, including exhibits filed as a part of the Registration Statement or an amendment to the Registration Statement, are available for inspection and copying through the entities listed above.

 

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

 

The SEC allows CBI to “incorporate by reference” the information that we file with them, which means that we can disclose important information to you by referring you to the other information we have filed with the SEC. The information that we incorporate by reference is considered to be part of this reoffer prospectus, and information that we file later with the SEC will automatically update and supersede this information.

 

The following documents filed by us with the SEC pursuant to Section 13 of the Exchange Act (File No. 001-13467) and any future filings under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act made before the termination of the offering are incorporated by reference:

 

  (1) CBI’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2003, filed with the SEC on March 30, 2004 and the exhibits therein;

 

  (2) CBI’s Quarterly Report on Form 10-QSB for the fiscal quarter ended March 31, 2004;

 

  (3) CBI’s Current Reports on Form 8-K, filed with the SEC on March 11, 2004, March 30, 2004, March 31, 2004, April 30, 2004, May 11, 2004, May 27, 2004 and June 4, 2004; and

 

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  (4) The description of the shares of common stock, without par value per share, contained in the Registrant’s registration statement on Form 8-A filed with the Commission on October 7, 1997 (File Number 001-13467) pursuant to Section 12(g) of the Exchange Act, which incorporates by reference the description of the shares of common stock, without par value per share, contained in the registration statement on Form SB-2 (File Number 333-31731) filed by the Registrant on July 21, 1997 and declared effective by the Commission on October 17, 1997, and any amendment or report filed with the Commission for purposes of updating such description.

 

All documents that we have filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this reoffer prospectus and prior to the completion of the offering shall be deemed to be incorporated by reference into this reoffer prospectus and to be part of this reoffer prospectus from the date of filing of these documents. CBI will provide without charge to each person, including any beneficial owner, to whom a copy of this reoffer prospectus is delivered a copy of any or all documents incorporated by reference into this reoffer prospectus except the exhibits to such documents, unless such exhibits are specifically incorporated by reference in such documents. You may request copies by writing or telephoning Thomas R. Reynolds, Secretary, Commonwealth Biotechnologies, Inc., 601 Biotech Drive, Richmond, Virginia 23235; telephone number (804) 648-3820.

 

INDEMNIFICATION

 

Our Articles of Incorporation, as amended to date, provide for us to indemnify our directors and officers to the fullest extent authorized by Virginia law. This indemnification would cover all expenses and liabilities reasonably incurred in connection with their services for or on behalf of us. In addition, our Articles of Incorporation provide that our directors will not be personally liable for monetary damages to us of breaches of their fiduciary duty as directors, unless they violated their duty of loyalty to us or our shareholders, acted in bad faith, knowingly or intentionally violated the law, authorized illegal dividends or redemptions or derived an improper personal benefit from their action as directors.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling CBI pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

EXPLANATORY NOTE

 

The purpose of this registration statement on Form S-8 is to register the issuance and resale of 300,000 shares of our common stock under the Commonwealth Biotechnologies, Inc. 2002 Stock Incentive Plan, as amended. A total of 600,000 shares of our common stock, net of shares previously issued, will be available for issuance. A registration statement on Form S-8 (Registration No. 333-102368), originally filed on January 6, 2003, as amended on April 28, 2004, registered for resale the initial 300,000 shares of our common stock issued or to be issued under the 2002 Stock Incentive Plan.

 

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INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Part I of Form S-8 (plan information and registration information) will be sent or given to the participants of the Commonwealth Biotechnologies, Inc. 2002 Stock Incentive Plan, as amended, as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended. Such documents need not be filed with the Securities and Exchange Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospecuts that meets the requirements of Section 10(a) of the Securities Act.

 

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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Pursuant to General Instruction E to Form S-8, CBI hereby incorporates by reference in this registration statement, except as noted, the contents of CBI’s earlier registration statement on Form S-8 (Registration No. 333-102368) filed on January 6, 2003 and amended on April 28, 2004.

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed with the Commission by CBI are incorporated herein by reference as of the dates thereof:

 

  (1) CBI’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2003, filed with the SEC on March 30, 2004 and the exhibits therein;

 

  (2) CBI’s Quarterly Report on Form 10-QSB for the fiscal quarter ended March 31, 2004;

 

  (3) CBI’s Current Reports on Form 8-K, filed with the SEC on March 11, 2004, March 30, 2004, March 31, 2004, April 30, 2004, May 11, 2004, May 27, 2004 and June 4, 2004; and

 

  (4) The description of the shares of common stock, without par value per share, contained in the Registrant’s registration statement on Form 8-A filed with the Commission on October 7, 1997 (File Number 001-13467) pursuant to Section 12(g) of the Exchange Act, which incorporates by reference the description of the shares of common stock, without par value per share, contained in the registration statement on Form SB-2 (File Number 333-31731) filed by the Registrant on July 21, 1997 and declared effective by the Commission on October 17, 1997, and any amendment or report filed with the Commission for purposes of updating such description.

 

All reports and other documents subsequently filed by CBI pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

In accordance with Virginia law, Article VI of CBI’s Articles of Incorporation provides as follows: The Corporation shall indemnify (a) any person who was, is or may become a party to any proceeding, including a proceeding brought by a shareholder in the right of the Corporation or brought by or on behalf of the shareholders of the Corporation, by reason of the fact that he is or was a director or officer of the Corporation, or (b) any director

 

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or officer who is or was serving at the request of the Corporation as a director, trustee, partner or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability incurred by him in connection with such proceeding unless he engaged in willful misconduct or a knowing violation of criminal law. A person is considered to be serving an employee benefit plan at the Corporation’s request if his duties to the Corporation also impose duties on, or otherwise involve securities by, him to the plan or to participants in or beneficiaries of the plan. The Board of Directors is hereby empowered, by a majority vote of a quorum of disinterested Directors, to enter into a contract to indemnify any Director or officer in respect of any proceedings arising from any act or omission, whether occurring before or after the execution of such contract.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit Number

  

Description of Exhibit


  4.1    Articles of Incorporation of Commonwealth Biotechnologies, Inc. (1)
  4.2    Bylaws of Commonwealth Biotechnologies, Inc. (1)
  4.3    Form of Common Stock Certificate (1)
  5.1    Opinion of Kaufman & Canoles, P.C. (2)
23.1    Consent of Kaufman & Canoles, P.C. (included in Exhibit 5.1)
23.2    Consent of BDO Seidman, LLP (2)
24.1    Powers of Attorney (included in Part II of this Registration Statement) (2)
99.1    Commonwealth Biotechnologies, Inc. 2002 Stock Incentive Plan (2)
99.2    First Amendment to Commonwealth Biotechnologies, Inc. 2002 Stock Incentive Plan (2)

(1) Incorporated by reference to CBI’s Registration Statement on Form SB-2, Registration No. 333-31731.

 

(2) Filed herewith.

 

Item 9. Undertakings.

 

(a) The undersigned registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to:

 

(i) include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(ii) reflect in the prospectus any facts or events which, individually or together, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement, and

 

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(iii) include any material information with respect to the plan of distribution.

 

(2) For determining liability under the Securities Act, treat each post-effective amendment as a new registration statement of the securities offered, and the offering of the securities at that time to be the initial bona fide offering; and

 

(3) File a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering.

 

(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the “Act”) may be permitted to directors, officers and controlling persons of the small business issuer pursuant to the foregoing provisions, or otherwise, the small business issuer has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.

 

(c) In the event that a claim for indemnification against such liabilities (other than the payment by the small business issuer of expenses incurred or paid by a director, officer or controlling person of the small business issuer in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the small business issuer will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, CBI certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Richmond, Commonwealth of Virginia on June 17, 2004.

 

COMMONWEALTH BIOTECHNOLOGIES, INC.

/s/ Robert B. Harris, Ph.D.

Robert B. Harris, Ph.D.

President

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Robert B. Harris and Richard J. Freer, his true and lawful attorney-in-fact, as agent with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacity, to sign any or all amendments to this registration statement and any registration statement related to the same offering as this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agents in full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as they might or be in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and their substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

/s/ Richard J. Freer, Ph.D.


Richard J. Freer, Ph.D.

  

Chairman of the Board, Chief Operating

Officer and Director

  June 17, 2004

/s/ Robert B. Harris


Robert B. Harris

  

President, Chief Financial Officer and

Director (Principal Executive Officer)

  June 17, 2004

/s/ Thomas R. Reynolds


Thomas R. Reynolds

  

Executive Vice President for Science and

Technology, Secretary and Director

  June 17, 2004

/s/ James H. Brennan


James H. Brennan

  

Controller (Principal Financial and

Accounting Officer)

  June 17, 2004

/s/ Peter C. Einselen


Peter C. Einselen

   Director   June 17, 2004

 


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/s/ Samuel P. Sears, Jr.


Samuel P. Sears, Jr.

  

Director

  June 17, 2004

/s/ Donald A. McAfee


Donald A. McAfee

  

Director

  June 17, 2004

/s/ James D. Causey


James D. Causey

  

Director

  June 17, 2004

 


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EXHIBIT INDEX

 

Exhibit Number

  

Description of Exhibit


  4.1    Articles of Incorporation of Commonwealth Biotechnologies, Inc. (1)
  4.2    Bylaws of Commonwealth Biotechnologies, Inc. (1)
  4.3    Form of Common Stock Certificate (1)
  5.1    Opinion of Kaufman & Canoles, P.C. (2)
23.1    Consent of Kaufman & Canoles, P.C. (included in Exhibit 5.1) (2)
23.2    Consent of BDO Seidman, LLP (2)
24.1    Powers of Attorney (included in Part II of this Registration Statement) (2)
99.1    Commonwealth Biotechnologies, Inc. 2002 Stock Incentive Plan (2)
99.2    First Amendment to Commonwealth Biotechnologies, Inc. 2002 Stock Incentive Plan (2)

(1) Incorporated by reference to CBI’s Registration Statement on Form SB-2, Registration No. 333-31731.

 

(2) Filed herewith.